If a medical treatment occurring in a foreign country is not prescribed by a Pennsylvania healthcare professional, can an employee still be reimbursed for the cost? In the matter of Babu v. WCAB ( Temple Continuing Care Center), the employee sustained an injury which was ultimately resolved by compromise and release except for the issue of medical treatments obtained in India. The treatment at issue was called, Ayurvedic, a therapy which is a form of massage with oil treatments. Two periods of therapy occurred in India during 2008 and 2010.
The employee argued that she is a licensed registered nurse in Pennsylvania and the treatment at issue was prescribed by a treating physician, not licensed in PA, but supervised by employee (claimant) as a registered nurse. The Workers’ Compensation Judge (WCJ) rejected the claim and found that the therapy was not compensable since it was not prescribed by a physician licensed in Pennsylvania; the medical documentation submitted did not describe the treatment and did not identify the body parts treated; and the requisite medical records were not provided. The Workers’ Compensation Appeal Board affirmed the denial.
The employee, on appeal to the Commonwealth Court, posited a number of arguments in support of the claim for payment of the Ayurvedic therapy. Initially, she argued that the employer had waived the compensability of the treatment since not raised in answer to the claim nor objected to during employee’s testimony. Since strictness of pleadings is not required in workers’ compensation matters, the Court rejected this argument and noted that the terms of the compromise and release agreement placed the treatment in dispute for decision by the WCJ.
Interestingly, the employee had a prior workers’ compensation claim in 2000 and obtained the same type of therapy in India. This claim was rejected by the WCJ in that litigation and ultimately affirmed by the Commonwealth Court in an unpublished opinion in 2010.
The employee now argued that the court in 2010 stated that treatment would be compensable if prescribed or provided under the supervision of a licensed practitioner. The employee claimed that this holding meant that the treatment at issue this time was compensable as her treating doctors were licensed, although not in Pennsylvania. However, the Court noted that pursuant to the holding in Boleratz v. WCAB (Airgas, Inc.), 932 A.2d 1014 (Pa. Cmwlth. 2007) the services of a massage therapist were not compensable when the therapist is unlicensed even if the services are prescribed by a licensed Pennsylvania healthcare provider. The court also rejected this argument and affirmed the denial of the claim.
The employee also argued that Section 109 of the Act was unconstitutional in limiting payment for treatments rendered by a Pennsylvania licensed healthcare provider. This argument was also rejected on the grounds that this limitation promoted legitimate state interests and did not violate the Equal Protection Clause or the Commerce Clause.
Comment: The unpublished Babu decision of 2010 presents a conflict with the earlier Boleratz case. Babu, 2010 stated that medical treatments are compensable if prescribed by, or provided under the supervision of a licensed practitioner, while Boleratz held that treatment provided by an unlicensed provider in Pennsylvania is not reimbursable even if prescribed by a licensed Pennsylvania healthcare provider. The court acknowledged the apparent conflict but did not address it as the employee failed to prove that this therapy was provided under the supervision of, or upon referral or prescription from, a licensed Pennsylvania healthcare provider.
For more information, please contact Peter J. Weber at pweber@wglaw.com or 215.972.7901.